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State Dept. Tries to Strip Gay Couple's Child of Citizenship

Andrew and Elad Dvash-Banks
Andrew and Elad Dvash-Banks

The department has appealed a federal judge's ruling that both sons of a binational same-sex couple are entitled to birthright citizenship.

The State Department is appealing a federal judge's ruling granting birthright citizenship to the son of a binational same-sex couple.

Los Angeles residents Andrew and Elad Dvash-Banks, a U.S. citizen and an Israeli citizen respectively, have twin sons, one conceived with Andrew's sperm and one with Elad's, using eggs from the same donor, who then carried both children and gave birth to them moments apart in Canada. Their children also qualify for U.S. citizenship, but the State Department has ruled that Aiden, the child conceived with Andrew's sperm, is a U.S. citizen, but his brother, Ethan, conceived with Elad's sperm, is not. The couple learned of the State Department's stance when they applied for passports for the boys, who are now 2 years old. They filed suit over the issue a year ago.

John F. Walter, a federal judge in Los Angeles, ruled in February that birthright citizenship is not contingent on a biological relationship with both parents if their parents were married when the child was born, as the two men were. It requires that biological relationship only if a child is born out of wedlock, he said. He called for the State Department to propose an agreement with the Dvash-Banks family that implements his ruling.

Instead, the State Department Monday appealed the ruling to the U.S. Court of Appeals for the Ninth Circuit. The notice it filed is brief, saying simply that the defendants -- Secretary of State Mike Pompeo and other department officials -- are appealing Walter's order. "The Department of State does not comment on pending litigation or arbitration," a department spokesperson told The Advocate.

"The government refuses to recognize the validity of Andrew and Elad Dvash-Banks' marriage, and continues to defend its discriminatory policy, which conditions the recognition of birthright citizenship on a biological link to a U.S. citizen parent," says a press release from Immigration Equality, which is representing the family.

"Once again, the State Department is refusing to recognize Andrew and Elad's rights as a married couple," Aaron C. Morris, executive director of Immigration Equality, said in the release. "The government's decision to try to strip Ethan of his citizenship is unconstitutional, discriminatory, and morally reprehensible. This is settled law in the Ninth Circuit, which has already established that citizenship may pass from a married parent to a child regardless of whether or not they have a biological relationship."

Immigration Equality is representing another binational same-sex couple in a similar case. Allison Blixt and Stefania Zaccari, a U.S. citizen and an Italian citizen respectively, are married and have two sons, one carried by Blixt, the other by Zaccari. The State Department has recognized Massi, the child carried by Blixt, as a U.S. citizen, but not Lucas, the child carried by Zaccari. Their case is still pending.

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